The role of the justice system in primary prevention

As an institution that seeks to reach and serve the whole community, the justice system holds significant potential to both prevent and respond to sexual violence.

The justice system holds many interconnected settings or opportunities – each of which can play a role in preventing sexual violence and violence against women more broadly. These include:

• the power of legislation and legal frameworks to reinforce or dismantle entrenched attitudes that drive and enable sexual violence.
• the role of high-profile legal cases in shaping cultural norms around consent, sexual violence and perpetrator accountability
• the justice system as a series of workplaces (such as, courts, law firms and legal services, police stations and family mediation services) that can be sites for the perpetuation or prevention of sexual violence.

Each of these settings – or preventative opportunities – within the justice system hold significant potential to drive long-term change to prevent sexual violence and all forms of violence against women. Below, we have outlined how the drivers of violence against women are currently present within each of these settings and opportunities to create change – by improving justice responses to sexual violence and helping to prevent these offences from happening in the first place.

The power of legislation and legal frameworks to reinforce or dismantle entrenched attitudes that drive and enable sexual violence

Legislation is a powerful tool for setting the standard of what behaviours are and are not accepted in our society. Legal definitions of sexual violence are influential on the community’s understanding of these harms, and their attitudes and expectations about sex, consent, relationships, and gender equality more broadly. Ensuring that our sexual offence laws are carefully considered is vital not only to ensuring that victim-survivors can access safe and effective justice system responses, but also in harnessing the preventative potential of the law.

There are a range of historic and contemporary examples that illustrate the role of legislation in reinforcing attitudes and behaviours that drive sexual violence. For example, it was only relatively recently that it became unlawful for a husband to rape his wife, with the last Australian jurisdiction (the Northern Territory) criminalising marital rape in 1994 (21). Similarly, the concept of ‘conjugal rights’, which described an inherent right to sexual relations with one’s spouse, remained in law until the introduction of the Family Law Act 1975 (Cth) (22). These laws condoned sexual violence by making consent irrelevant and reinforcing harmful gendered stereotypes that positioned sex as something for men to demand and women to submit to, allowing violence to become culturally entrenched.

By contrast, legislation can also be harnessed to both respond to and prevent gendered violence. A key example is the Sex Discrimination Act 1984 (Cth) (23). The Act protects people from unfair treatment on the basis of their sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy, and breastfeeding (24). Significantly, the introduction of this legislation also made sexual harassment against the law (24) – leading to a range of community education resources and programs aimed at ensuring people understood and complied with the law. The effectiveness of the Sex Discrimination Act 1984 (Cth) was further bolstered by the recent introduction of a legally enforceable positive duty on employers, business and organisations to take ‘reasonable and proportionate’ steps to eliminate sexual harassment and discrimination in the workplace (25). This reform shifted the emphasis away from a complaints-based model of responding to sexual violence, instead placing the burden on employers to actively prevent harm from occurring in the first place. Victoria’s recent legislative reform to introduce an Affirmative Consent Model (which is detailed below under ‘promising practice’) is another illustration of the preventative power of legislative change, particularly when bolstered by quality implementation support (26-28). Through corresponding education and prevention initiatives designed to transform the attitudes and beliefs that drive violent behaviour, and enable compliance, the law can more effectively respond to sexual offending.

The role of high-profile cases in shaping cultural norms around consent, sexual violence, and perpetrator accountability

While it is crucial that the law – as articulated in the statute books – appropriately criminalises sexual violence, is informed by robust evidence on the drivers, nature and impacts of sexual violence, and provides pathways to justice, the written word alone is not enough. We must also look at the ways in which the law is administered, by whom and for whom. It is critical to recognise the real-world power dynamics in which laws are situated, the marginalities that they may risk magnifying, and the myths and misconceptions around sexual violence they may reinforce.

Aided by media reporting, the way that sexual assault proceedings unfold, the decisions made, and the manner in which these are communicated to the public have strong cultural influence over the community’s understanding of what constitutes sexual violence, the nature of how this harm is perpetrated, who perpetrates it and who is affected. Within their submission to this inquiry, No to Violence noted that men accessing their phone counselling service regularly justify their use of sexual violence using the same myths and misconceptions that are commonly heard during sexual assault trials (29). For this reason, legal proceedings can either reinforce or challenge myths and misconceptions in relation to sexual offending or consent. If harmful ideas are perpetuated through prosecution, judgement or reporting of cases, there is a risk that legal proceedings reinforce the drivers of violence and thus contribute to the ongoing perpetration of sexual violence, as well as under-reporting and poor justice responses for victim-survivors.

A prominent example of how high-profile cases can influence public discourse around sexual violence is the 2019 allegation that Bruce Lehrman raped Brittany Higgins in a Federal Minister’s office. The media storm that followed this case as it progressed towards a criminal trial placed Higgins under intense scrutiny, as her allegation of rape was questioned and her behaviour examined to determine whether she fit the ideal of a “model victim” (30). Higgins described the police investigation of her allegation of rape as “absolutely awful”, with the process leaving her feeling belittled and violated (31). Additionally, Higgins had her private text messages leaked to the media and published (32). The public response to this high-profile case also raised serious concerns, with sexual violence advocates warning that the backlash against Higgins had the potential to significantly dissuade victim-survivors of sexual violence from disclosing their experiences and seeking a justice response, while further reinforcing myths around false allegations (33). The allegations were taken to trial in 2022, which was later aborted due to juror misconduct, and the criminal charges laid against Lehrmann were dropped in late-2022, due to serious concerns around how a retrial may impact Higgins' mental health (34).

Earlier in 2024, several NSW judges publicly criticised the manner in which sexual assault cases were being prosecuted (35). The criticism included a suggestion (disputed by the NSW DPP) that sexual assault cases were being pursued without prosecutors being satisfied the alleged victim had a "reasonable basis" for making a complaint (35). To justify this, one District Court judge was reported in the media as giving the example of a case involving a woman who alleged she was sexually assaulted while under the influence of alcohol, suggesting that the allegation was only made because she didn’t remember what had happened. He further alleged this was not a strong case because the woman had previously made allegations of sexual assault against other men – notwithstanding that, according to the media report, three of the other men accused had pleaded guilty to sexually assaulting her (35). These comments, which were publicly reported in the media, reinforce dangerous misconceptions around the prevalence of false, or nefarious, allegations of sexual assault, and the nature of and responsibility for seeking consent. For example, they directly undermine long-standing efforts from sexuality educators, sexual assault services and others to ensure the public understand that it is against the law to have sex with someone who is so intoxicated they cannot consent.

While high-profile cases hold the potential to negatively influence cultural understandings of consent, sexual violence, and the perpetration of this harm, they also hold the power to shape stronger community understanding and contribute to the prevention of sexual violence. Following the abandonment of criminal charges, Bruce Lehrmann filed defamation proceedings against the media outlet which first aired Brittany Higgins' allegations. In a landmark finding, Justice Michael Lee determined that on the civil standard of proof, Lehrmann did rape Higgins (36). Within his judgement, Justice Lee dispelled many false notions about how we expect victim-survivors of sexual violence to behave, including in relation to how trauma influences a person’s behaviour following an incident and how it can impact their memory (37). Justice Lee’s judgement also provided a strong statement of what rape is in contemporary Australia, by detailing how rape and consent are defined and understood in a modern context (38). Given the high-level of media reporting and public interest, this judgement had impact beyond the individual parties involved; sending a powerful signal to all Australians about the importance of consent, the seriousness of sexual violence, and that perpetrators of this violence will be held to account.

The justice system as a series of workplaces that can be sites for the perpetuation or prevention of sexual violence

Workplaces are another influential setting for ensuring safe and effective justice responses to sexual violence. Change the story points to workplaces as an important site for addressing violence against women, as demonstrating gender equality and challenging violence within these spaces has a strong normative influence on individuals’ attitudes (3). Primarily, for those working within the justice system, it is vital to ensure sexual harassment and gendered discrimination is prevented and addressed. If the legal profession is not a safe workplace for women, it is natural to question how it can be relied upon to provide safe and just responses to sexual violence and other gendered crimes.

The prevalence of sexual harassment within the legal profession is well documented. In April 2021, Dr Helen Szoke published her final report in the Review of Sexual Harassment in Victorian Courts, which found that sexual harassment was an ‘open secret’ (39). Following this, in June 2021 The Victorian Legal Services Board and Commissioner report on Sexual Harassment in the Victorian Legal Sector found that 61% of women legal professionals who participated in the survey had experienced sexual harassment (40).

The Starts with Us reports by Women’s Legal Service Victoria found that courts and legal offices in community, public and private sectors overwhelmingly favour white, cisgender men at the expense of women (41, 42). Women of colour, women who have disability or mental illness, trans women, women from precarious economic backgrounds, older women and lesbian, bi and queer identifying women all suffered more frequent or more severe discrimination (41, 42). As these reports show, legal workplaces and institutions have historically been environments where the gendered drivers of violence thrive, including ‘men’s control of decision-making’ and ‘cultures of masculinity that emphasise dominance, aggression and control’ (3). This helps make sense of both the prevalence of sexual harassment and gender-based discrimination within the legal profession and the historic and ongoing challenges of addressing it.

It is promising to see that across various workplaces within the justice system, there is appetite for change (these measures are outlined below under ‘promising practice’). Efforts over the last decade to improve the representation of women in judicial positions have achieved results: 39.4% of Commonwealth judges are now women, an increase of 8.6% since 2013; and 50.0% in Victoria, an increase of 11.2% in the same period (43). While there is not currently other demographic data available, we note the Australian Law Reform Commission’s 2022 inquiry into judicial impartiality and the law on bias, which included a recommendation to collect and report annually on statistics related to judicial diversity (44).

While these efforts are promising, there are opportunities for legal services and law firms, police, courts and tribunals, and the lawyers, judicial officers and staff that make up these workplaces to do more to address sexual violence and harassment perpetrated within the justice system. This includes leveraging the positive duty under the Sex Discrimination Act 1984 (Cth) – and related positive duties under state-based equal opportunity and occupational health and safety laws – to encourage the public, private and community sector to play a greater role in the primary prevention of sexual violence across their workplaces and the broader community. There may also be opportunities to require engagement with primary prevention in order to access and comply with established systems of compulsory professional development, pro bono legal service provision, and the highly coveted eligibility for private law firms to be on government legal panels to require and incentivise lawyers, law firms and legal services.

Accordingly, Respect Victoria encourages the legal sector to commit to whole-of-organisation and whole-of-setting primary prevention. This should include partnering with prevention experts and specialist sexual violence services to drive commitment to and uptake of primary prevention across justice workplaces and settings. Improving workplace cultures, with a focus on safety and equity, holds the potential to drive long-term change across the justice system and ensure victim-survivors have access to safe and effective justice responses to sexual violence.